VENKATASWAMI NAICKER Vs. BALAKRISHNA NAICKER AND ORS.

JUDGEMENT

(1.) THE first defendant in O.S. No. 836 of 1930 on the file of the District Munsiff's Court, Srivilliputtur, is the petitioner in this proceeding. That suit was brought by the plaintiff' represented by his next friend and it was a suit for partition after setting aside some alienations. In that suit the petitioner here, who is the father of the first respondent, was made the first defendant. The second defendant was his mother. The third defendant was his grandmother, and defendants 4 and 5 were the alienees. They are respectively respondents 2, 3, 4 and 5 in this matter. A preliminary decree was passed in the suit on the 9th April, 1932, and thereafter the suit was adjourned to 15th April, 1932 for the purpose of depositing Rs. 30 for payment to the Commissioner to be appointed to divide the property. No payment was made, and on 15th April, 1932 an order was passed by the Court saying that the case was "closed". The parties took no further steps in the matter; but on 14th October, 1933 it would appear that the minor's;next friend entered into a compromise out of Court with the concerned parties. With the details of that compromise we are not concerned here. In 1936 the next friend of the minor plaintiff first respondent died. The plaintiff, who was all the time a minor, admittedly attained majority on the 21st August, 1944 and filed the present application on the 16th April, 1945 under Order XXVI Rule 13 and 14, for declaring him as a major. He agreed to deposit the sum of Rs. 30 directed to be deposited by the Court and asked for the appointment of a Commissioner and for an order to divide the suit properties in two equal halves in accordance with the directions given in the preliminary decree. This application was made on the footing that the final decree had not been passed and that for that purpose the proceedings were still on foot. The first respondent's application was allowed in the Court below and he was declared a major and was directed to deposit the commission fees by a specified date.

(2.) THREE objections were raised before the learned District Munsiff to the first respondent's application. The first was that the application was not maintainable because the conduct of the next friend in not depositing the commission fees on the 15th April, 1932 amounted to an abandonment of the claim. The second objection was that the application was not in time, and the third objection was -that there was a waiver on the part of the plaintiff and hence he was estopped from instituting the petition. The learned advocate for the petitioner was not able to satisfy me that any of these objections are tenable. I fail to see how the application is not maintainable on the ground that the next friend failed to deposit the commission fee within the date specified and how that conduct would amount to an abandonment of the claim, and how such an abandonment would bind the minor or would prevent him from questioning these proceedings after attaining majority. On the question of limitation also, the minor was obviously entitled within three years after attaining majority to repudiate the transactions and it is not clear that there was any waiver or estoppel arising from the circumstance or from the conduct of the parties.

(3.) THE real contention put forward before me on behalf of the petitioner is that, although the minor after attaining age is entitled to seek to avoid the compromise that was entered into on his behalf by his next friend, it is open to him (the petitioner) to plead the compromise as an adjustment of the claim' and his complaint was that this particular plea of adjustment was not considered in the Court below. I do not find from the judgment of the lower Court that any such objection or plea was raised precisely in that form. The learned advocate for the petitioner relies on the decision of the Privy Council in Madan Theatres Ltd. v. Dinshaw and Co., Bankers, Ltd. (1945) 3 M.L.J. 367 , from which it appears that such a plea of adjustment would be tenable. But in that case there was no difficulty arising from the minority of a party and there was no need to consider the scope, effect and operation of Order XXXII, Rule 7 of the Civil Procedure Code. Mr. Rajagopala Aiyangar, the learned advocate for the respondent, while conceding that it may be open to the petitioner to plead and put forward such adjustment in appropriate cases, contends that in this case, Order XXXII, Rule 7 is a complete bar to the raising of such a plea. Under that rule it is incumbent upon a next friend or guardian of a minor in a suit to which -a minor is a party to obtain the leave of the Court with regard to any agreement or compromise that he may enter into on behalf of a minor with reference to the suit in which he acts as his next friend or guardian. That leave has under that rule to be expressly recorded in the proceedings, and Sub -rule 2 provides that any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor. Very recently the nature and effect of this rule was considered by the Privy Council in Chhaba Lalo v. Kallu Lal (1946) 1 M.L.J. 339 , and their Lordships made this observation: At the same time it is clear that the terms of Order 32, Rule 7 were not complied with. There was no formal application by the guardian ad litem for the leave of the Court to his entering into the agreement for reference to arbitration, nor was any such leave formally given, or expressly recorded in the proceedings. The note on the record quoted above does not show that the Judge realised that fie was dealing with the guardian -ad -litem of minors. The requirement in Order 32, Rule 7, that the leave of the Court be expressly recorded in the proceedings was added in 1908, and Sir Thomas Strangman for the appellant says that the addition to the rule merely gave statutory effect to the previous practice. Be that as it may, the rule is imperative and in their Lordships' view its terms must be strictly complied with. Further it was pointed out relying on a ruling of the Full Bench of the Allahabad High Court in Mariam Bibi v. Amna Bibi I.L.R. 1937 All. 317 , that an agreement which removes the decision of a matter in dispute from the jurisdiction of the Court and refers it to some outside party is clearly an agreement with reference to the suit and not only falls within the terns of the rule, but comes within the mischief at which the rule appears to be aimed. Their Lordships said: The interests of minors might well be sacrificed by an improper reference to arbitration and it is necessary that their interest be protected by the Court. If minors successfully challenge an agreement to refer as not made in compliance with Sub -section (1) of Rule 7, it is avoided against all parties under Sub -section (2). These remarks, in my judgment, apply forcibly to the present case. Here also the matter was referred to a mediator, taking the case out of the hands of the Court and an adjustment seems to have been arrived at, for which, under Rule 7, it was imperative to take the leave of the Court and to get it recorded in the proceedings of the suit. The only possible way of getting out of this situation would be to contend that the suit itself was no longer pending in view of the order " closed " that was passed by the Court on the 15th April, 1932. But such an order is clearly an order which cannot be deemed to amount to a disposal or dismissal of the suit. Even if it did amount to a dismissal, it has been held by the Privy Council in Lachmi Narain Marwari v. Balmukund Marwari (1924) 47 M.LJ. 441 : I.L.R. 51 1.A.321 : I.L.R. 4 Pat. 61 that after a preliminary decree, notwithstanding a dismissal, the suit will still be held to be pending.